Access to land in Scotland – disputes between access takers

I made a supplementary submission (PDF) to the RACCE Committee of the Scottish Parliament earlier this week.

As noted in that submission (which is also available online, along with others), I am comfortably past the original deadline. That may be so, but (as demonstrated by the supplementary evidence submitted by Scottish Land and Estates, the John Muir Trust and the Game and Wildlife Conservation Trust) it is possible to make additional representations, albeit any points you make after the deadline had better be good ones.

I will let my submission speak for itself. As for why I was late, I do not really have a good reason for that. I was mulling over some issues about the amendments to Part 1 of the Land Reform (Scotland) Act 2003 that can be found in the clauses of the new Land Reform Bill and suddenly thought: wait, I had a practical suggestion about reforming this (see this earlier blog).

In summary, I suggest it might be useful to have an intervening stage for disputes between access takers which do not necessarily merit full blown litigation in the sheriff court or indeed a call to the cops. That is all that the current scheme of legislation and the Scottish Outdoor Access Code seems to provide for.

My proposal would be to allow Local Access Forums to make some kind of initial decision on disputes between access takers in a quick, low-cost way. This proposed reform could slip effortlessly into the existing scheme without much controversy and address a slight but not insignificant gap in its dispute resolution mechanism. By making the change part of the legislation, that should elevate it to a requisite standing for access takers to be aware of Local Access Forums and to respect their decisions, without ruling out a judicial determination if matters still require to be litigated.

If implemented, this proposal could build on what is already a largely successful scheme for access to land in Scotland. In terms of how to make the change to the legislation itself, the introduction of a decision making role for Local Access Forums could be relatively simple to achieve, and a new “conduct” exclusion of crossing or being on land in breach of a Local Access Prohibition could be quickly added to the existing s.9(a) of the legislation, which excludes from responsible access that is in breach of an interdict or another judicial orders. (In fact, amendment to s.9 can be made by order under s 4, so that particular change would be relatively painless, but an amendment to the role of a Local Access Forum would be better dealt with in an actual piece of reforming legislation, hence why the Land Reform Bill could be an appropriate vehicle.)

All that said, there is quite a lot going on with the Land Reform Bill, so this seemingly technical reform might be low on the priority list. Be that as it may, I think it is important for academics to engage with reform processes when they are ongoing, even if that engagement is to only prompt a bit more thinking about the legal issues involved.


About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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7 Responses to Access to land in Scotland – disputes between access takers

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